Legal Memorandum: Statute of Limitations for Wrongful Death

Issue: IN NEW JERSEY, WHETHER IT IS ERROR TO REFUSE TO DISMISS A WRONGFUL DEATH COMPLAINT BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS.

New Jersey law is well-settled that a wrongful death action is never subject to the discovery principle, under which the statute of limitations is said to accrue only upon discovery of the cause of action.  TA s "Presslaff v. Robins, 168 N.J. Super. 543 (App. Div. " c 1 l "Presslaff v. Robins, 168 N.J. Super. 543 (App. Div. 1979)"Presslaff v. Robins, 168 N.J. Super. 543 (App. Div. 1979).  Although the discovery principle is theoretically available regarding a two-year “accrual” type of limitations period, id. at  547, when the plaintiff files a single action with survivorship and wrongful death counts, the Appellate Division has declined to apply the discovery doctrine, id. at 548.  Refusing to “strain on policy grounds . . . the statutory language to achieve a result obviously not intended by the Legislature,” id. at 547, and deferring to the Legislature to rectify the alleged anomaly, id. at 547-48, the Presslaff court held that a plaintiff’s cause of action for wrongful death is absolutely barred by application of the two-year statute of limitations, id. at 548.

In New Jersey, the statute of limitations for wrongful death is two years, and the courts have not seen fit to draw a parallel to criminal murder prosecutions to change that statute.  The two-year wrongful death statute of limitations is not subject to such equitable principles as estoppel or tolling.  TA s "Presslaff v. Robins, 168 N.J. […]